DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Complaint Case No.: 84 of 2009 Date of Inst: 19.01.2009 Date of Decision:19.08.2010 Ajay Ghai son of Sh.Dharshan Lal Ghai r/o H.No.2394, Sector 22-C, Chandigarh. ---Complainant V E R S U S 1. Shalimar Estate Pvt. Ltd., Corp. Office SCO No.110-111, Sector 8-C, Chandigarh. 2. The Managing Director, Shalimar Estate Pvt. Ltd., Corp. Office SCO No.110-111, Sector 8-C, Chandigarh. ---Opposite Parties QUORUM SHRI LAKSHMAN SHARMA PRESIDENT SHRI ASHOK RAJ BHANDARI MEMBER SMT.MADHU MUTNEJA MEMBER PRESENT: Sh.S.S.Bawa, Adv. for complainant Sh.Kapil Kumar, Adv. for OPs. --- PER LAKSHMAN SHARMA, PRESIDENT Sh.Ajay Ghai has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed to :- i) Pay interest @ 18% p.a. on the amount already deposited by the complainant. ii) Pay a sum of Rs.50,000/- p.m. after 2 years from the date of application till the date of actual delivery of possession. iii) Pay a sum of Rs.20,000/- as litigation expenses. 2. In brief, the case of the complainant is that on 07.12.2004, he applied for allotment of 500 sq. ft. Commercial site of Shalimar Mega Mall under category B vide application No.1303 (Annexure C-1). He deposited Rs.3 lacs along with the application which was acknowledged vide receipt (Annexure C-2). The complainant was issued acceptance-cum-demand letter dated 16.12.2004 (Annexure C-3). As per this letter, 60% of the chargeable price i.e Rs.26,94,400/- was to be deposited as per the mode of payment mentioned therein and the remaining 40% i.e. Rs.17,97,600/- was to be paid within 60 days from the date of issue of the allotment letter without any interest or in 120 equated monthly installments @ Rs.31,458/- per month with interest @ 11 % per annum. The possession of the showroom was to be delivered within two years by the OPs. According to the complainant, as per the terms contained in demand letter 16.12.2004 (Annexure C-3), he deposited all the installments (vide Annexures C-4 to C-10). Thereafter, he deposited Rs.7,86,400/- vide receipt dated 15.02.2008. Thus he paid in all a sum of Rs.26,94,400/- being 60% of the chargeable amount. Despite it, the possession of the showroom was not delivered to him. It has further been pleaded that OPs issued allotment letter to the complainant on 02.09.2008 by acknowledging receipt of 60% of the chargeable amount. The complainant was asked to deposit the remaining amount in 120 monthly installments of Rs.31,458/- per month staring from November, 2008. On 26.12.2009, the complainant deposited Rs.62,916/- towards installments for the month of November & December, 2008. Vide letter dated 02.09.2008 (Annexure C-12), the complainant was directed to start fit out works in the showroom. So, the complainant requested OPs to provide completion certificate and possession letter so that he could take possession and start fit out works. But the same were not issued. So the complainant could not start the fit out works. According to the complainant, due to delay in possession, he has suffered huge financial loss and it amounts to deficiency in service on the part of OPs. In these circumstances, the present complaint was filed seeking the reliefs mentioned above. 3. In a joint reply filed by the OPs, the facts with regard to allotment of commercial showroom bearing site No.SM-5, Sector 5, Panchkula to the complainant vide allotment letter dated 02.09.2008, depositing of Rs.26,96,400/- and Rs.62,916/- by the complainant and their commitment to handover the possession of the showroom within 2 years as mentioned in the brochure have been admitted. According to the OPs, the complainant vide letter dated 10.1.2008 was offered the possession of the showroom but the complainant has not completed the formalities and has not taken the possession of the same. It has been pleaded that the complainant vide said letter dated 10.1.2008 was intimated to start the fit out works in the said showroom after obtaining permission letter from them by depositing sum of Rs.12,86,400/- but the complainant deposited only a sum of Rs.7,86,400/- on 15.02.2008. It has further been pleaded that as per the terms and conditions of the allotment, the complainant was to complete the fit out work within 3 months from the date of issuance of letter dated 10.01.2008 but he failed to do so. According to OPs, as per letter dated 02.09.2008, the complainant was again requested to complete the formalities which he failed to so. According to OPs, the complainant was given compensation of Rs.60,000/- for one year with regard to delay in completion of the showroom @ Rs.10/- per sq. ft. per month as per term & condition No.10 of the application form submitted by the complainant. It has further been pleaded that despite the issuance of letters dated 10.01.2008 and 02.09.2008, the complainant was not coming forward to take the possession of the showroom for the reasons best known to him. All other pleadings of the complainant have been denied by the OPs. In these circumstances, according to OPs, there is no deficiency in service on its part and the complaint deserves dismissal. 4. We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc. 5. Admittedly, the complainant has paid a sum of Rs.26,96,400/- being 60% of the total cost and Rs.62,916/- being the installment for the months of November and December, 2008. The above said amount has been paid in installments as per the demand made in demand-cum-acceptance letter dated 16.12.2004 and the subsequent letters. OPs were to hand over the possession of the showroom within two years i.e. upto 07.12.2006. OPs have failed to provide completion certificate and letter for possession despite several requests. OPs can make demand for the remaining amount only at the time of delivery of possession. As the completion certificate and possession letters have not been made available to the complainant, the plea that the complainant has failed to pay the remaining installments and has failed to start fit out works cannot be accepted. Thus, there is deficiency in service on the part of OPs. 6. The complainant has not prayed for return of the amount deposited by him with OPs. Rather he has prayed for compensation for harassment and mental agony and for payment of Rs.50,000/- per month with interest @ 18% p.a. from 07.12.2006 till the date of possession. 7. As per Clause No.10 of the terms and conditions of the application form, the complainant is entitled to damages @ Rs.10/- per sq. ft. per month of super area in case of delay in delivery of the possession. Clause 10 of the application form reads as under:- "The company/promoters shall endeavor to give possession of showroom to those allottees whose payment shall be regular as per payment plan of the scheme within two years from issue of acceptance-cum-demand letter subject to force Marjorie circumstances and on receipt of all payment as per the payment plan of the allotment. Other charges due payable up to date of possession and on receipt of post dated cheques of equates monthly installments, according to the payment plan applicable to him/her/them. The company/promoter on completion of the construction shall issue fins' call to the intending allottee(s) who shall within 30 days thereof, remit all dues and post dated cheques of EMI's and take possession of the showroom. In the event of his / her / them failure to take possession for any reason whatsoever, he / she / they shall be deemed to have taken possession of the allotted showroom and shall bear all maintenance charges and any other levies on account of the allotted showroom. In case of delay, in giving the possession of showroom beyond the committed time the company / promoter shall be liable to pay compensation to the intending allotee(s) @ Rs. 10 per sqft. Per month of the super area. in case the Intending Allottee(s) will not make the -showroom operational after the offer of possession and after the expiry of fit out period he/she/they will be liable for payment of non-operational charges @ Rs. 10 per sqft. Per month of the super area to the company/promoter. 8. In these circumstances, the complainant is entitled to the compensation as per Clause 10 reproduced above. So he is not entitled to the amount as prayed for by him in the complaint. The above said view stands fortified by the ratio of the case titled as Shalimar Estate (Pvt.) Ltd. and another Vs. Sh.Sarabjeet Singh and another decided by our Hon'ble State Commission in Appeal No.493 of 2009 vide order dated 19.04.2010. 9. In view of the above findings, the complaint is dismissed. However, it is made clear that the complainant shall be entitled to the damages as per the clause reproduced above. 10. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 19.08.2010 Sd/- (LAKSHMAN SHARMA) PRESIDENT Cm Sd/- (ASHOK RAJ BHANDARI) MEMBER Sd/- (MADHU MUTNEJA) MEMBER
| | MR. A.R BHANDARI, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MRS. MADHU MUTNEJA, MEMBER | | 
